Wallace v Horsham Racing Centre Pty Ltd Trading as West Side Horsham

[2021] FCCA 1369

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALLACE v HORSHAM RACING CENTRE PTY LTD TRADING AS WEST SIDE HORSHAM [2021] FCCA 1369

Catchwords:
INDUSTRIAL LAW – FAIR WORK – applicant’s application for general protections claim – respondent’s application for summary dismissal of applicant’s application – dismissal of applicant’s application on the basis of rules 13.03A and 13.03B of the Federal Circuit Court Rules 2001- whether the applicant is in default of rules 13.03A and 13.03B of the Federal Circuit Court Rules 2001- application dismissed – no order as to costs.

Legislation:

Fair Work Act 2009 (Cth), ss.365, 570

Federal Circuit Court Rules 2001, rr.13.03A, 13.03B

Cases cited:

Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388

Applicant: MARY WALLACE

Respondent: HORSHAM RACING CENTRE PTY LTD TRADING AS WEST SIDE HORSHAM

File Number: MLG 1575 of 2019

Judgment of: Judge Mercuri

Hearing date: 21 October 2020

Date of Last Submission: 21 October 2020

Delivered at: Melbourne

Delivered on: 21 June 2021

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the respondent: Mr Denton

Solicitors for the respondent: Williams Winter

ORDERS

1. The applicant is in default within the meaning of rule 13.03A of the Federal Circuit Court Rules 2001.

2. By reason of the applicant’s default, pursuant to rule 13.03B of the Federal Circuit Court Rules 2001, the application filed on 17 May 2019 is dismissed. 

3. No order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1575 of 2019

MARY WALLACE

Applicant

and

HORSHAM RACING CENTRE PTY LTD T/A WEST SIDE HORSHAM

Respondent

REASONS FOR JUDGMENT

Background

1. Before the court is an application for summary dismissal of the applicant Ms Wallace’s claim under the general protection provisions of the Fair Work Act 2009 (‘Fair Work Act’).  I will say more about the nature of Ms Wallace’s substantive claim shortly.

2. For ease of reference in these reasons I will refer to the parties by their names.

3. The basis of the summary dismissal application by the respondent Horsham Racing Centre Pty Ltd (‘Horsham Racing’) is that Ms Wallace has failed to comply with the Federal Circuit Court Rules 2001 (‘the Court Rules’), various orders of this court and that she has generally failed to prosecute her claim in a timely manner.

4. On 17 May 2019, Ms Wallace filed an application in this court under the Fair Work Act alleging dismissal in contravention of a general protection.  As required by the Fair Work Act, Ms Wallace had initially filed an application in the Fair Work Commission where a conciliation conference took place. That conciliation conference did not resolve the dispute and the Commission issued a certificate under section 365 of the Fair Work Act indicating that conciliation had been exhausted.

5. It appears from the Fair Work Commission documents at annexure CK-49 to the respondent’s affidavit of Ms Kolovos sworn 27 May 2020, that Ms Wallace was represented in the proceedings before the Commission by an organisation called ‘A Whole New Approach’.   In her application to this court filed 17 May 2017, Ms Wallace indicated that she was legally represented by Mr Kurt Esser of Esser Legal.

6. When the matter came on for hearing before me on the first occasion on 14 August 2019, there was no appearance for the respondent and Ms Wallace appeared on her own behalf.  I ordered that the matter be adjourned to 15 October 2019 and directed that Ms Wallace file an affidavit of service prior to that adjourned date.

7. On 15 October 2019, Ms Wallace appeared by telephone but there was again no appearance for the respondent and the matter was listed for a final hearing on 2 February 2020 and trial directions issued.  Ms Wallace was also ordered to file a copy of the orders made that day on Horsham Racing and an affidavit of service within 21 days of those orders. 

8. It appears that notwithstanding the orders made on 14 August 2019 requiring Ms Wallace to file an affidavit of service prior to 15 October 2019, and the order made on 15 October 2019, Ms Wallace in fact did not file an affidavit of service.  Rather, Ms Wallace filed what purported to be an affidavit of service on 24 December 2019.  That affidavit states that Ms Wallace sent a copy of the following documents to ‘Tim Nurse and (Board Member) Kevin Lane’ at ‘40 Bennet Road Horsham and PO Box 358 Horsham 3401’:

   a)Application for Final Hearing Notice dated 23 December 2019; and

   b)Information Sheet dated 23 December 2019.

9. It appears from the annexures to that affidavit that Ms Wallace addressed the documents referred to in paragraph 8 above, to Horsham Racing at its principal place of business.  It appears from the annexures to this ‘affidavit of service’ were the orders which were made on 15 October  2019 and a letter from Ms Wallace to Horsham Racing in which she sets out her claims that she had raised concerns with Horsham Racing (Tim Nurse) about a co-worker and that consequently her casual hours were reduced.  It appears that this complaint is at the heart of Ms Wallace’s claim of a breach of the Fair Work Act adverse action provisions.  In that letter, Ms Wallace concluded with:

   So to the board, we look forward to hearing your defence on this matter soon.  If failing to respond I will be seeking leave of my application undefended.

10. What is clear from the ‘affidavit of service’ filed by Ms Wallace on 24 December 2019 is that Ms Wallace did not comply with the orders made on 15 October 2019 in that she failed to serve the relevant documents within 21 days as directed. 

11. Notwithstanding Ms Wallace’s non-compliance, on 24 January 2020, Horsham Racing filed a notice of address for service.

12. On 3 February 2020, Ms Wallace appears to have appointed a lawyer to act on her behalf with Esser Legal filing a notice of address for service on Ms Wallace’s behalf.

13. It is common ground that there were some negotiations between the parties’ respective legal representatives about a possible adjournment of the final hearing which was to commence on 6 February 2020. 

14. Those negotiations ultimately did not resolve the matter and on 4 February 2020, Horsham Racing filed an application in a case seeking an adjournment of the final hearing date.  That application was supported by an affidavit of Ms Kolovos sworn 4 February 2020.  Relevantly, Ms Kolovos states that Horsham Racing did receive some documents from Ms Wallace on 16 October 2019, although this did not include the application itself.  Moreover, Ms Kolovos states that following receipt, Horsham Racing contacted Ms Wallace’s previous representative, A Whole New Approach, and was told that the matter had been finalised.

15. Ms Kolovos further stated that on 27 December 2019, her client received some further documents by posting, including 15 October 2019 orders and the letter to Horsham Racing dated 20 December 2019, but again, had still not receive the originating application filed by Ms Wallace.

16. Ms Kolovos then sets out in some detail the steps taken by her to communicate with Ms Wallace and then with her representative about seeking an adjournment of the hearing listed for 6 February 2020.

17. Ms Kolovos annexes various emails from Ms Wallace which at best are argumentative and could be described as non-responsive.

18. At no point during these discussions, did Ms Wallace provide Ms Kolovos a copy of the originating application.  Moreover, Ms Wallace refused to agree to an adjournment of the proceedings as sought, even though she herself had not complied with the trial directions made on 15 October 2019 requiring her to file and serve any affidavit upon which she intended to rely no later than 21 days prior to the hearing date, namely by 16 January 2020.

19. On 4 February 2020, Esser Legal filed a notice of intention to withdraw.

20. When the matter came before me on 6 February 2020, Ms Wallace was not present when the matter was called.  The notations to the orders made on that day provide that the applicant was called out of court and by telephone and did not respond to either. 

21. Orders were made on 6 February 2020, adjourning the hearing to a date to be fixed, not before 23 March 2020.  The 15 October 2019 orders requiring the parties to file affidavit material remained in full force and effect.  In addition, Ms Wallace was ordered to serve a copy of the initiation application and Form 5,[1] both filed on 17 May 2019 on Horsham Racing by 7 February 2020. 

    [1] This was a typographical error and should have been a reference to the Form 2 which the applicant had filed on 17 May 2019.

22. Ms Wallace did not file any affidavits setting out her evidence as required by the order made on 15 October 2019.  The only document filed by Ms Wallace was an ‘affidavit of service’ affirmed on 7 February 2020.  Annexed to this affidavit is a statement from Ms Wallace in which she:

    a)explains her late arrival to court on 6 February 2020;

    b)asks that the court costs be vacated;

    c)discusses her dealings with Esser Legal;

    d)explains why she wants this matter to proceed to court;

    e)details her concerns about the way she was treated after she made a complaint about Mr Fontana;

    f)various negative interactions she had with Mr Fontana.

23. Ms Wallace also attached to this affidavit:

    a)email correspondence between her and Mr Esser from Esser legal;

    b)some documents from the Victorian Commission for Gambling and Liquor Regulation; and

    c)what appears to be a note prepared by Ms Wallace explaining that she believes that she did provide a copy of the relevant documents to Mr Tim Nurse at Horsham Racing.

24. Even giving Ms Wallace the benefit of the doubt and acknowledging that she is representing herself, this document does not constitute an affidavit setting out the evidence that she would give in this matter.  In many respects, it is difficult, if not impossible, to follow.

25. Horsham Racing then filed an affidavit of Mr Tim Nurse on 16 April 2020.  Leaving aside the fact that it was unsworn, this affidavit was not filed in accordance with the 15 October 2019 orders which required Horsham Racing to file its affidavit material no later than 14 days prior to the hearing date, unless leave of the court was obtained.

26. In any event, the matter came before me again on 17 April 2020 for a callover.  Ms Wallace attended by telephone and Horsham Racing was represented by Ms Kolovos of Williams Winter.  As was explained to the parties, the purpose of the callover was to determine whether the matter was ready to proceed and also given the restrictions on conducting hearings in person to determine whether, if ready to proceed, it was a matter which was appropriate to be heard using videolink (i.e by Microsoft Teams videoconference).

27. In the course of that hearing, Ms Wallace was reminded that orders had been made for evidence to proceed by affidavit and that she was required to file any affidavits upon which she wished to rely 21 days prior to the hearing. 

28. Given the failure of the parties to comply with the 15 October 2019 orders regarding the filing of evidence, in all of the circumstances, I determined that the matter was not ready to proceed at that point in time and that the appropriate course was for the hearing to be adjourned.  It was also clear that Ms Wallace was having some difficulty understanding what was required in terms of her filing her evidence in chief by way of affidavit.  I therefore decided that it was appropriate for Ms Wallace to be given one more opportunity to put her evidence in chief before the court by way of an outline of evidence.  I clearly explained to her that she was required to file an outline of her evidence setting out an outline of the evidence that she would give in support of her claim.  In the course of that exchange, Ms Wallace indicated that she wished to call evidence from two other employees of Horsham Racing.  I explained that if she wanted to call other witnesses, whether by subpoena or otherwise, she would need to still file an outline of the evidence that she thought they would give in support of her claim.

29. Ms Wallace indicated that she would have to subpoena those two witnesses as they were current employees of Horsham Racing and she was concerned about the consequences to them if they gave evidence about their employer.  I reiterated that if she wished to rely on their evidence, even if she intended to subpoena them, she was still required to file an outline of the evidence she expected them to give so that Horsham Racing would be on notice of the case it had to answer.

30. It appeared from Ms Wallace’s response that she understood what was required of her. 

31. Horsham Racing then made an application for a self-executing order, namely that, notwithstanding being given a further opportunity to put her evidence before the court in a proper form, if Ms Wallace failed to comply, that her application ought be dismissed.  For reasons given in the course of the hearing, I did not agree to make such an order.  Rather, I indicated that I would order that both parties file outlines of evidence.  I also stated, that no doubt, if Ms Wallace failed to comply again, then Horsham Racing could make an application at the appropriate time.

32. The matter was then listed for a full day hearing and orders were made for the parties to file outlines of evidence.  Ms Wallace was given 21 days (i.e. by 8 May 2020) in which to file her outlines. Horsham Racing was then given a further 21 days from receipt of Ms Wallace’s outlines to file its outlines of evidence.

33. Both parties also indicated that if matter was to be listed during the COVID-19 restrictions, they were both content for the matter to proceed via videolink (i.e. via Microsoft Teams videoconference).  A notation to that effect was included in the orders made 17 April 2020.

34. Following these orders, on 28 April 2020 Ms Wallace filed an ‘affidavit’  (‘28 April 2020 affidavit’) in which she said:

    Outlining court procedures of events and witnesses brought forward regarding to affidavits filed for information regarding court proceedings as detailed. Attached.

35. Attached to 28 April 2020 affidavit is a typed document which appears to be a statement of evidence which Ms Wallace would propose to give.  In that document, Ms Wallace also appears to indicate that she has ‘two witnesses whom are very reliable sources and have been working for Horsham racing for a number of years.’  It appears that these two witnesses are Trevor Cosgrove and Jason Herbert. 

36. It is against this background that on 28 May 2020, Horsham Racing filed an application in a case seeking to dismiss Ms Wallace’s application on the basis that she has repeatedly failed to comply with orders of the court and failed to prosecute her claim in a timely manner.

Application for summary dismissal

1. In support of its application for summary dismissal, Horsham Racing submits that:

   a)throughout these proceedings, the applicant has continually breached orders of this court and the Court Rules;

   b)the applicant has repeatedly failed or refused to serve critical documents and has failed or refused to meaningfully communicate with Horsham Racing or its legal representative for the purpose of progressing her claim to trial. 

2. Horsham Racing relies upon the application in a case filed 28 May 2020, the affidavit of Ms Christina Kolovos affirmed 27 May 2020 and the outline of submissions filed 29 May 2020.  The application in a case was listed for hearing on 21 October 2020. 

3. Ms Wallace has not filed a formal response to the application in a case.  She however filed the following additional documents:

   a)first affidavit affirmed 3 September 2020 in which says:

   Filing – affidavit a more detailed outline of my evidence for court hearing

   b)second affidavit affirmed 3 September 2020 (‘3 September 2020 affidavit’) which says:

   filing of affidavit opposing application for withdrawal of case MLG 1375/2019

   c)two affidavits of service evidencing that she sent copies of the two affidavits affirmed 3 September 2020 to the solicitors for the respondent.

4. The first 3 September 2020 affidavit annexes what appears to be the evidence which Ms Wallace proposes to give in this proceeding.  Putting it at its highest, there are aspects of this statement which appear to set out the evidence which Ms Wallace believes Jason Herbert and Trevor Cosgrove might give.

5. The second 3 September 2020 affidavit annexes what appears to be a response to the application to dismiss.  In essence, Ms Wallace claims to have done her best to comply with orders and rules of court which, as a lay person, she is not familiar with.  She also points to the fact that Horsham Racing has not complied with orders of the court.  She seeks that the application in a case be dismissed and that the substantive application be listed for final hearing.

6. Horsham Racing seeks the court dismiss Ms Wallace’s substantive application pursuant to rules 13.03A and 13.03B of the Federal Circuit Court Rules 2001.

7. Rule 13.03A relevantly sets out the circumstances in which a person is in default for the purposes of rule 13.03B. Rule 13.03B then details what action the court can take when a person is in default. Relevantly, under rule 13.03A(1), an applicant is in default if the applicant fails to:

   (a)comply with an order of the Court in the proceeding;

   (b)file and serve a document required under these Rules;

   (c)…

   (d)do any act required to be done by these Rules; or

   (e)prosecute the proceeding with due diligence.

8. Rule 13.03B then goes on to say:

   (1)If an applicant is in default, the Court may order that:

   (a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant;

   (b)a step in the proceeding be taken within the time limited in the order; or

   (c)if the applicant does not take a step in the time mentioned in paragraph (b) – the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.

9. It is conceded by Horsham Racing that even if there is a default as defined, the court still has to consider whether it is appropriate in all of the circumstances to exercise its discretion to make an order under rule 13.03B.

Is the applicant in default?

1. It is submitted for Horsham Racing that the applicant has a long history of significant and repeated failures to comply with orders of the court and with the requirements of the Rules more generally.[2]  It is further submitted that these incidents amount to a complete failure by Ms Wallace to comply or even to attempt to comply with the court’s orders and rules.

   [2] Respondent’s outline of submissions filed 2 June 2020.

2. Horsham Racing points to the applicant’s failure to comply with the relevant court Rules regarding the filing of affidavits, in particular rules 15.25, 15.26 and 15.28.[3]  In addition, Horsham Racing asserts that Ms Wallace has repeatedly failed to serve the originating application on it as required by rule 6.03, notwithstanding having been given numerous opportunities to do so.[4] 

   [3] Respondent’s outline of submissions filed 2 June 2020 paragraphs 10 to 13.

   [4] Respondent’s outline of submissions filed 2 June 2020 paragraph 14.

3. There is much force to this submission. Ms Wallace in reply maintains that she has in fact served the application on Horsham Racing. Moreover, she submits that she is not a lawyer, does not have a law degree and therefore is not familiar with the technical requirements of the Court Rules. Whilst this is true in so far as it relates to non-compliance with the technical requirements regarding the form affidavits ought to take, it certainly cannot explain or excuse Ms Wallace’s continued failure to serve the originating application on Horsham Racing. This was an issue which was raised with her numerous times by Ms Kolovos and by the court in the early stages of this proceeding.

1. Ms Wallace has purported to file numerous affidavits of service which, leaving aside their non-compliance with the Court Rules about the form such an affidavit ought to take, does not exhibit the oiginating application as one of the document served on Horsham Racing. Ms Wallace however, simply asserts that she has sent all relevant documents to Horsham Racing and they know about her claim.

2. I am satisfied that Ms Wallace has failed to comply with the Court Rules as alleged by Horsham Racing.

3. It is further submitted for Horsham Racing that Ms Wallace had repeatedly failed to comply with orders of this court.[5] In particular, Horsham Racing refers to the following breaches:

   a)Ms Wallace failed to file an affidavit of service before 15 October 2019 as required by order 2 of the orders of 14 August 2019;[6]

   b)Ms Wallace failed to file and serve any affidavit upon which she intended to rely by 16 January 2020, as required by order 3 of the orders of 15 October 2019;[7]

   c)Ms Wallace failed to serve a copy of the 15 October 2019 orders on Horsham Racing by 5 November 2019 as required by order 7 of the 15 October 2019 orders;[8]

   d)Ms Wallace failed to file or serve any outline of evidence that she would rely upon at the final hearing date by 8 May 2020 as required by order 3 of 17 April 2020.[9]

   [5] Respondent’s outline of submissions filed 2 June 2020 paragraphs 15 to 21.

   [6] Respondent’s outline of submissions filed 2 June 2020 paragraph 15.

   [7] Respondent’s outline of submissions filed 2 June 2020 paragraph 16.

   [8] Respondent’s outline of submissions filed 2 June 2020 paragraph 17.

   [9] Respondent’s outline of submissions filed 2 June 2020 paragraph 21.

4. Horsham Racing also points to the fact that the applicant failed to appear at the final hearing listed on 6 February 2020.[10] 

   [10] Respondent’s outline of submissions filed 2 June 2020 paragraph 18.

5. I note that Ms Wallace has provided some material, leaving aside the form of that material, explaining her lateness on 6 February 2020.[11] 

   [11] Applicant’s affidavit affirmed 7 February 2020 and filed 1 May 2020.

6. Even accepting that there was a reasonable explanation for that non-attendance, there is no explanation offered to explain her failure to comply with the remaining orders identified above.  Of particular concern is the fact that Ms Wallace:

   a)did not serve a copy of the originating application on Horsham Racing and when asked about this on numerous occasions, her responses were combative;

   b)did not file either an affidavit of her evidence in chief as required by the 15 October 2019 orders or an outline of evidence as required by the 17 April 2020 orders – indeed it was only as late as 3 September 2020 that Ms Wallace filed a document which might be described as an outline of her evidence and that of the two witnesses she seeks to call in support of her claim;

   c)refused and or failed to reasonably engage with Horsham Racing’s representatives to discuss how the non-compliance might be addressed in a timely manner to allow this matter to be resolved quickly and justly.

7. Having concluded that Ms Wallace has defaulted, the question is whether the court, in all of the circumstances, ought exercise its discretion and dismiss Ms Wallace’s substantive claim. 

8. As noted by Wilcox and Gummow JJ in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 in considering the equivalent dismissal power for non-compliance under the Court Rules relevantly noted:

   [33]  It is to be noted that the power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding.  There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court’s judgement as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule.  There is no requirement of ‘inordinate and inexcusable delay’ on the part of the applicant or the applicant’s lawyers, although any such delay is likely to be a significant matter.  There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant.  And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.

   …

   [35]  The observations which we have just made about the scope of Order 10 rule 7 are not intended to convey the impression that any failure to comply with a procedural direction will appropriately result in the dismissal of the proceeding.  On the contrary, the Rules must be administered sensibly and with appreciation both of the fact that some delays are unavoidable, and unpredictable, by even the most conscientious parties and their lawyers, and of the likely serious consequences to an applicant of staying or dismissing a claim … We would not wish our observations to cause respondents to apply for dismissal of proceedings simply because there has been a non-compliance with a direction by the applicant, even though it does not cause or indicate a continuing problem in preparing the matter for an early trial.

   [36] The discretion conferred by Order 10 rule 7 is unconfined, except for the condition of non-compliance with a direction.  … two situations are obvious candidates for the exercise of the power; cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant’s state of mind or resources – in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent.   … the cumulative effects of an applicant’s defaults may be such as to satisfy the Judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so.  Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

9. It was submitted for Horsham Racing that Ms Wallace’s non-compliance with court orders and Court Rules would satisfy both of these circumstances. There is much force to this submission.

10. It is common for self-represented litigants to appear in this court. Some latitude must be afforded to them as it is no doubt difficult to navigate one’s way through Court Rules and procedures without the benefit of legal assistance or representation. However, the purpose of Court Rules and orders of court is to ensure that a matter progresses to final hearing in an efficient and timely manner. This is necessary not only to ensure that the dispute between the parties themselves is resolved expeditiously but also to ensure that the resources of the court, which are required for all litigants, are used efficiently and effectively.

11. This is particularly so in this court. The Court Rules provide that the court is required to resolve disputes justly, efficiently and economically and conduct proceedings in a manner which avoids undue delay, expense and technicality.

12. In this case, Ms Wallace had been given numerous opportunities to ensure that Horsham Racing was aware of the claim it faced and importantly, the evidence that Ms Wallace was to rely upon when the matter came on for hearing. 

13. Moreover, it is clear from Ms Kolovos’ affidavits that Horsham Racing through its representatives sought to address some of the deficiencies in Ms Wallace’s compliance directly with her.  Ms Wallace did not engage with Ms Kolovos’ attempts in this regard.

14. In all of these circumstances, and acknowledging that it is a serious step to take and not one come to lightly, having regard to all of these factors, I am satisfied that it is appropriate for the court to exercise its discretion and dismiss Ms Wallace’s application for her repeated and continued failure to comply with Court Rules and court orders.

Costs

1. Horsham Racing also seeks an order for costs incurred from and including 6 February 2020.

2. This is an application made pursuant to the Fair Work Act. As such section 570 applies. This section provides that in a proceeding in a court pursuant to the Fair Work Act, costs can only be ordered in limited circumstances, including:

   a)if the court is satisfied that the party initiated the proceedings vexatiously or without reasonable cause; or

   b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs.

3. I am not satisfied that Ms Wallace initiated these proceedings vexatiously or without reasonable cause.  She no doubt genuinely believes that she has been treated poorly by Horsham Racing. 

4. Moreover, whilst for the reasons set out above, I have found that Ms Wallace has failed to comply with court orders and the Court Rules, I do not go so far as to say that she has acted unreasonably. Rather, I am satisfied that she has been unable to comply with those rules and directions. Whilst the history of this matter demonstrates that she has been given numerous attempts to rectify the matter and she has been unable to do so, I do not find that this is a circumstances which would warrant the making of a costs order against her. Moreover, even if I am wrong and her conduct could be described as unreasonable, the court retains a discretion as to whether to order costs and in the circumstances of this matter, I am not satisfied that the interests of justice would be served by such an order.

Conclusion

1. For each of these reasons, I therefore make the orders set out at the beginning of these reasons.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date: 21 June 2021